SC1185

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 72 OF 2011

BETWEEN:

WILLIAM MAIHUA (SNR)
Appellant

AND:

MAGDALENE NAMBAKWEN MAIHUA
Respondent

Waigani: Hartshorn, Makail and Logan JJ.
2012: 2nd & 4th May

Application to dismiss Appeal as no reasonable cause of action disclosed – no appearance by appellant on hearing of Respondent's maintenance application and on the hearing of his appeal in the National Court – failure by Appellant to obtain an order under s. 34 Evidence Act or to give notice under s. 35 Evidence Act in respect of his proposed affidavit evidence 

Facts:

This is an application to dismiss an appeal for not disclosing a reasonable cause of action. The appeal is against a maintenance order initially granted to the Respondent wife by the District Family Court (District Court). Though the Appellant husband had filed affidavits in opposition to the maintenance claim, there was no appearance by or on his behalf on the hearing of the wife's maintenance application. Further, the husband never gave notice, as required by s. 35 Evidence Act, of an intention to rely upon the affidavits which he had filed in the District Court, nor had he obtained an order under s. 34 Evidence Act permitting his use of any of his affidavits. 

Aggrieved by the decision, the Appellant appealed to the National Court. The National Court dismissed the husband's appeal. 

Held:

The grounds of appeal should be dismissed as they have no reasonable prospects of success. The Appeal is dismissed

Counsel:

Mr. R. J. Mann-Rai, for the Appellant
Mr. J. Nalawaku and Mr. A. Waffi, for the Respondent

4th May, 2012

1. BY THE COURT: The appellant and the respondent are husband and wife. Because of the different roles they have undertaken in the course of litigation with respect to maintenance that has been conducted in the District Court in original jurisdiction, in the National Court in the exercise of intermediate appellate jurisdiction and now this court in the exercise of ultimate appellate jurisdiction, it is convenient to refer to each of them as "the husband" and the "wife", irrespective of the particular role which one or the other had in the course of this litigation.

2. In March 2009, the wife filed proceedings in the District Court seeking an order for maintenance against the husband in respect of the six children (1 adopted) of their marriage on the basis of his alleged desertion. On 15th October 2009, a District Court Magistrate made an order that the husband pay maintenance in the total amount of K3,884.00 for family upkeep. In addition, the husband was ordered to repay an existing housing loan. The Family District Court had earlier found on 28th September 2009 that the husband had constructively deserted the wife.

3. Though the husband had filed affidavits in opposition to the maintenance claim, there was no appearance by or on his behalf on the hearing of the wife's maintenance application. Further and, as will be seen, critically so far as later events are concerned, the husband never gave notice, as required by s. 35 Evidence Act, of an intention to rely upon the affidavits which he had filed in the District Court. Nor had he ever obtained an order under s. 34 Evidence Act permitting his use of any of his affidavits. The result was that the only admissible evidence in relation to maintenance which the District Court had before it in relation to maintenance were those of the wife. The Magistrate did not give reasons for his decision.

4. Being aggrieved by the orders made by the District Court, the husband appealed on 7th June 2010 against those orders to the National Court pursuant to s. 219 District Courts Act. He secured a stay of the operation of the District Court's orders pending the hearing and determination of his appeal to the National Court.

5. The grounds specified by the husband in his notice of appeal to the National Court included a challenge to the finding of desertion as well as an allegation that the sum fixed by way of maintenance was excessive. Significantly in light of later events, it is not a ground of appeal to the National Court that the District Court's judgment should be set aside because of a failure on the part of the Magistrate to give reasons.

6. On 25th May 2011, the National Court dismissed the husband's appeal. Once again, though he was notified of the date fixed for the hearing of his appeal, there was no appearance by or on behalf of the husband at the time when his appeal was heard by the National Court. That court:

a) dismissed the husband's appeal;

b) ordered that the District Court maintenance order be "effected forthwith";

c) ordered that the husband pay accrued maintenance in the total lump sum of K73,796.00; and

d) ordered that the husband pay the wife's costs of the appeal.

7. The husband appealed on 30th June 2011 to the Supreme Court against the order made by the National Court on 25th May 2011. The husband applied to the National Court on 1st June 2011 for an order setting aside the dismissal of his appeal on 25th May 2011. On 20th June 2011, that application was dismissed with costs. The husband's notice of appeal to this Court does not additionally and expressly refer to that order but it was always implicit in his appeal to this court that whatever order made by the National Court which had the effect of affirming the award of maintenance made against him by the District Court should be set aside. In turn, our intention is that the orders made by this Court finally dispose of any ability on his part to further challenge the orders made by the National Court.

8. The husband applied for a stay of the National Court's orders of 25th May 2011 on 18th July 2011. This stay application was initially heard on 15th August 2011 and then adjourned until the following day for further hearing. The husband appeared by his lawyer on the first day of that hearing but not on the following day whereupon the stay application was dismissed in default of appearance. He filed a second stay application on 18th August 2011. Through no fault of the husband, that application was not able to be heard until 2nd May 2012, at which time we also heard an application on the part of the wife for the summary dismissal of the appeal on the basis that it disclosed no reasonable cause of action. Another ground advanced was delay on the part of the husband in prosecuting the appeal. Though there has been a degree of tardiness on the part of the husband in the preparation of an appeal book, we do not consider that in the circumstances of this case there has been such delay in the taking of essential steps in the prosecution of the appeal as would provide a basis for its dismissal on that ground alone. There are, in any event, other reasons why this appeal should be dismissed summarily.

9. The grounds of appeal to the Supreme Court are these:

"3. GROUNDS FOR APPEAL

The leaned trial Judge erred in law (or mixed fact and law) when Her Honour:

3.1 Erroneously made a finding that there was no evidence from the Appellant to reach a conclusion that the Respondent's evidence was uncontested when there were affidavit materials filed by the Appellant at the District Court which were reproduced in the Appeal Book which showed that the maintenance amount ordered were excessive and unjustified as there were no written reasons or justification for the orders made which resulted in miscarriage of justice.

3.2 Erroneously entertained other applications such as the application made by the Respondent to order that the Appellant pay the outstanding maintenance arrears apart from a dismissal application when the matter was fixed for a hearing of the substantive appeal.

3.3 Erroneously ordered that the appellant pay the respondents' costs of the proceedings in OS (App) No. 806 of 2009 when these proceedings were properly instituted pursuant to Rule 12(1) of the Appeal Rules 2005 and proceeded ex parte. 

3.4 Erroneously accepted the Respondent's evidence and found that it had not been contradicted thus resulting in the Appellant not discharging his onus of proof when the contrary was correct in that the Appellant's evidence was there at all material times in the Court file in the Appeal Book and as such there was miscarriage of justice.

3.5 Erroneously affirmed that District Court order of 15 October 2009 which required the Appellant to pay K3,884.00 per month and for 17 months totaling K73,796.00 when the amount ordered was too excessive and not properly justified in that the learned District Court magistrate failed to provide any written decisions setting out the reasons for the amount ordered.

3.6 Erroneously affirmed the District Court order of 15 October 2009 when there were no written reasons from the learned District Court magistrate for the orders made which resulted in a serious miscarriage of justice.

3.7 Erroneously ordered the Appellant to pay the Respondent the legal costs to be agreed or taxed when the appeal should have been allowed and the matter should have been referred back to the District Court for a proper trial and consequently costs awarded to the Appellant.

3.8 Erroneously ordered the dismissal of the appeal when there was no basis at all to dismiss the appeal.

3.9 The dismissal of the appeal resulted in justice not being dispensed under Section 158(2) of the Constitution and such there was miscarriage of justice."

10. The wife invoked both this Court's rules and also its inherent jurisdiction in seeking summary dismissal on the basis of an absence of any reasonable cause of action. As to this Court's rules, we drew attention in the course of the hearing of the appeal to rule 16 Supreme Court Listing Rules which expressly provides for summary dismissal either on the application of a party or on the Court's own motion. The wife also sought to invoke the second limb of s 155(4) Constitution as a basis upon which, if it is in the interests of justice, a proceeding disclosing no reasonable cause of action might be dismissed. It is not necessary to consider whether that provision supplies an additional source of power summarily to dismiss this appeal as there is ample power so to do on the other bases invoked by the wife.

11. We make the following observations in respect of the grounds of appeal:

a. Ground 3.1

The learned National Court judge did indeed observe that the wife's evidence was uncontested. She was entitled so to do. The failure on the part of the husband either to obtain an order from the District Court under s. 34 Evidence Act permitting the use of affidavit evidence or to give notice under s. 35 of that Act in respect of his use of affidavit evidence meant that none of his filed affidavits was admissible on the hearing of the wife's maintenance application in the District Court. They did not thereby become admissible because they were in error reproduced in the appeal book prepared for the appeal to the National Court. The only admissible evidence before the District Court was that of the wife.

It is true that the District Court did not give reasons in respect of the orders which it made. Reasons ought to have been given by the Magistrate at the time of making substantive orders of these kinds but their absence was not a ground of appeal to the National Court. Ordinarily, the Magistrate's reasons, if not earlier given, would have been disclosed in a report furnished under s. 225 District Courts Act following the institution of an appeal. That was not possible in this case as the Magistrate concerned had by then retired. In many cases, an absence of the provision of reasons for substantive orders will, when raised as a ground of appeal, provide a reason why an appeal should be allowed and a matter remitted for rehearing. However, the powers conferred on the National Court on the hearing of an appeal from the District Court by s. 230 District Courts Act are not limited to ordering that a matter be remitted for rehearing. They also include exercising a power that the Court that made the order might have exercised and making such further or other order as to costs or otherwise as the case requires: s. 230(1)(e) and 230(1)(f) District Courts Act respectively. 

The National Court's ability to exercise those powers was not removed because the husband chose not to attend on the day appointed for the hearing of his appeal. The court certainly could have dismissed the appeal for want of prosecution but it was not obliged so to do. The rules of natural justice required that the husband be given an opportunity to be heard in respect of the hearing of his appeal, not that he avail himself of that opportunity before the court exercised the powers conferred upon it in the exercise of the jurisdiction which he had chosen to invoke. The court was also entitled to dispose of the appeal on its merits. In circumstances where the essence of the husband's complaint about the maintenance ordered was excessive, where the only admissible evidence on the subject was that of the wife and where remission of the matter to the District Court would produce further delay in the final determination of the amount of maintenance payable, there was no injustice in the National Court itself making a discretionary value judgment as to the amount of maintenance which ought to be paid by the husband. This is what occurred. As it happened, that court chose by so doing to affirm the amount specified by the District Court. The admissible evidence before the National Court, which was that of the wife only, reasonably admitted of the affirming of the amounts originally fixed by the District Court. 

For these reasons, ground 3.1 has no reasonable prospect of success.

b. Ground 3.2 The ordering of payment of arrears of maintenance was an ancillary order in respect of the affirming of the amount fixed by the District Court in circumstances where no amount had by then been paid by the husband. The power to make such an order was conferred by s. 230(1)(e) and 230(1)(f) District Courts Act. This ground has no reasonable prospect of success.

c. Ground 3.3 The National Court's order as to costs was that the husband pay the wife's costs of the appeal to be taxed. Case O.S. (App) No 806 of 2009 was the husband's stay application pending the determination of the appeal to the National Court. A term of that stay order was that costs be costs in the appeal. In the result, the wife obtained the benefit of an order for costs in the appeal, which would engage with the costs order on the stay application. However, if the wife incurred no costs attributable to that stay application then none would be allowable on taxation. There was no error on the part of the National Court in ordering the husband to pay the costs of the appeal. That did nothing more than give effect to the usual way in which a costs discretion is exercised, which is that costs follow the event. This ground has no reasonable prospect of success.

d. Ground 3.4 For reasons already given in respect of ground 3.1, the wife's evidence was uncontradicted. Ground 3.4 has no reasonable prospect of success.

e. Ground 3.5 The absence of reasons was not a ground of appeal to the National Court by the husband. Further and in any event, whatever injustice there was in the District Court's failure to give reasons was cured by the consideration by the National Court afresh on the merits and on the only admissible evidence of how much, if any, maintenance ought to be awarded. The National Court did give reasons for the orders it made. As we have already observed, the amount awarded by that court was reasonably open on the evidence before it. No injustice remains. Ground 3.5 is devoid of merit.

f. Ground 3.6 This ground is nothing more than a restatement of a point raised by earlier grounds. Repetition of an unmeritorious ground does not make it meritorious. All that it does is make a notice of appeal unnecessarily prolix.

g. Ground 3.7 For reasons given in respect of ground 3.1, the course adopted by the learned National Court judge was within power and reasonably open in the particular circumstances of this case. This ground has no reasonable prospects of success. 

h. Ground 3.8 This ground adds nothing to earlier grounds. For reasons already given in respect of ground 3.1, the dismissal of the appeal and the manner in which it was dismissed were within power and reasonably open in the particular circumstances of this case. This ground enjoys no reasonable prospect of success. 

i. Ground 3.9 For the reasons given above, there was no miscarriage of justice. The husband had two opportunities to put his case on the merits for a lesser award of maintenance, once in the District Court and on appeal in the National Court. That he did not avail himself of these opportunities either adequately or at all does not mean that there was any injustice.

12. For these reasons, the appeal must be dismissed. The husband should pay the wife's costs of and incidental to the appeal to be taxed if not agreed.

_______________________________________________________________
Warner Shand Lawyers: Lawyers for the Appellant 
Namani & Associates: Lawyers for the Respondent